ComplaintCal. Super. - 3rd Dist.August 1, 2017By Fa x WO W EM EL AW YE RE , CO M E L G U I N D Y K O E G E L u r M E Y E R : 9 o O O o N Y D H O W FS F W D W N p S BD NW NW SW W E BP B o we eS O S . ee e se O e o N DA HW FB Ww NH & G O we NI N D A A BR wD PH P fF So S ELGUINDY, MEYER & KOEGEL, LLP Superies oeeeucer DAVID L. PRICE, State Bar Number 088696) dprice@emklawyers.com 2990 Lava Ridge Court, Suite 205 Roseville, CA 95661 Telephone: (916) 778-3310 Facsimile: (916) 330-4433 Attorneys for Plaintiffs TERRY ANEST & LANA ANEST SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PLACER TERRY ANEST & LANA ANEST, Case No.: , Ww YW Plaintiffs, PLAINTIFFS TERRY ANEST & LANA vs. ANEST’S COMPLAINT FOR: PROSCAPES LANDSCAPE AND DESIGN, INC., a California corporation; and DOES 1 | 1: BREACH OF CONTRACT nae 2. BREACH OF IMPLIED COVENANT through 100, inclusive, aug Winch OF GOOD FAITH AND FAIR Defendants. DEALING 3. BREACH OF EXPRESS WARRANTY 4. NEGLIGENCE Plaintiffs Terry Anest & Lana Anest, husband and wife, hereby allege as follows: PRELIMINARY ALLEGATIONS 1. Plaintiffs are now, and at all times mentioned in this complaint have been, residents of Placer County, California and this judicial district. Plaintiffs own that parcel of real property commonly known as 3900 Stoneleigh Court, in Roseville, California (the “Property”). 2. Plaintiffs are informed and believe, and based thereon allege, that defendant Proscapes Landscape and Design, Inc. is a corporation organized and existing pursuant to the laws of California and doing business in Placer County, California and this judicial district. 3, Plaintiffs do not know the true names of defendants sued herein as DOES 1 through 100, inclusive, and therefore sue them by those fictitious names. Plaintiffs will amend this complaint to show their true names and capacities when they have been ascertained. 1 COMPLAINT E L G U I N D Y K O E G E L u r M E Y E R : 9 Ww w AM EL AW TE RS .C OM - _ Ww W W N o O o f e S I D H SN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Plaintiffs are informed and believes that each of the fictitiously named defendants is indebted to plaintiffs as hereinafter alleged, and the plaintiffs’ rights against such fictitiously named defendants arise from such indebtedness. 5. Plaintiffs are further informed and believe, and based thereon allege, that at all times mentioned in this complaint, defendants DOES 1 through 100 were the agents and employees of the named defendants, and in doing the things alleged in this complaint were acting within the course and scope of that agency and employment and with the knowledge and consent of their principal and/or employer. Defendants DOE 1 through Doe 20, by way of example, are subcontracts hired or otherwise engaged by defendants to provide labor and material for work provide at the Property. FIRST CAUSE OF ACTION (BREACH OF CONTRACT) 6. Plaintiffs hereby incorporates herein by this reference all of the allegations set forth above in paragraphs 1 through 5, inclusive. 1. In or about November of 2012, plaintiffs and each of them met with the principal of defendant Proscapes Landscape and Design, Inc. (“Proscapes”) about the possibility of hiring Proscapes to provide certain landscaping and related exterior home improvement services for and at plaintiffs’ residence (the “Home”), a single family home located on the Property. Proscapes provided plaintiffs with written estimates for the costs of such improvements and repairs, providing prices at which it could and would provide the landscape services discussed with plaintiffs. 8. As the Proscapes’ proposal was acceptable to plaintiffs, they and each of them signed the proposal and entered into an agreement (the “Agreement”) with defendant, hiring said defendant to provide an extensive array of landscape and hardscape services at the Home. By way of illustrative examples, and without limitation, defendant agreed to install several thousand square feet of artificial turf, to design and build a small swimming pool, to design and install irrigation systems and controls as and where appropriate, and to pour concrete as and where agreed. 2 COMPLAINT K O E G E L u r se ve Au KL AM TE RS .C OM E L G U I N D Y M E Y E R : 9 O o Oo NN D O W W B P W W P O we N N Y N Y N Y NY N Y R Q RD RD e e e i a a a a o N D R F Y W N F S G D m N D D H N W B P Ww W B M KF O S 9. All of the contractually agreed upon home improvement and landscape services were to be performed/installed/provided between approximately November of, 2012 and the spring of 2013. Plaintiffs understood, in entering into the Agreement, that Proscapes would not necessarily perform all of the underlying work itself, but that he would act as general contractor for the home improvement and landscape services in question, enabling Proscapes to hire licensed subcontractors (and only licensed subcontractors) for parts of the work. Plaintiffs, however, were contracting exclusively with Proscapes. Notwithstanding the parties’ initial agreement, the work and the services provided by defendant Proscapes continued for several years as defendant and its various subcontractors completed, corrected, modified and often corrected again the work and the services which had been agreed upon. 10. Following execution of and pursuant to the Agreement, Proscapes undertook to perform the agreed-upon construction services and to provide the labor, materials and equipment required by the Acheament During the course of the work performed by Proscapes, plaintiffs were asked, from time to time, to advance or remit payments to Proscapes. Plaintiffs ultimately paid defendant Proscapes the sum of approximately $100,000 for the agreed services. ' 11. Asa part of the Agreement, defendant Proscapes further impliedly agreed that it would complete the landscape and construction services at the Property in accordance with both (i) applicable building standards and building codes, and (ii) commercial custom and practice incident to construction of similar projects in the State of California. 12. Plaintiffs, at all material times, honored their contractual commitments to defendants and each of them, including, without limitation, the obligation to pay defendants in accordance with the Agreement. Defendants, however, have breached and violated the terms of the Agreement in that defendants failed to adequately supervise and manage the construction on the Property, failed to deliver to plaintiffs home improvement and landscape services completed either in accordance with the parties’ Agreement or in accordance with pertinent legal requirements; and failed to complete or fulfill the terms and conditions of the Agreement. As illustrative examples, although without limitation, defendants failed to provide oversight of all construction services; failed to adequately supervise and inspect the work of subcontractors; hired 3 COMPLAINT E L G U I N D Y K O E G E L u r wre n en cc aw ve ns .c om M E Y E R : 5 N Y H n N A Ff oo 10 11 12 13 14 15 16 17 18 19 20 ai 22 23 24 25 26 ae 28 unlicensed subcontractors; failed to properly install turf, concrete and irrigation systems; failed to properly install and/or plaster the pool surfaces; and failed to provide assurance that, inter alia, the various exterior systems of the Home were properly installed, maintained and operated. 13. During the time subsequent to defendants’ initial completion of the various improvement services at the Property, plaintiffs learned of numerous breaches by defendants and have endeavored, without success, to have defendants remedy or otherwise ameliorate the problems caused by defendant’s breaches of the parties’ Agreement. Defendant Proscapes, for example, repeated agreed to remedy its contractual failures and in fact attempted to do so. Ultimately, however, by the fall of 2016, Proscapes completed its work at the Property, thereby breaching the Agreement. 14. As a direct and proximate result of defendants’ breach of contract, plaintiffs have sustained and continue to sustain substantial damages, all in an amount according to proof at the time of trial, but which sum is estimated to exceed seventy-five thousand dollars ($75,000.00). In that plaintiffs have incurred and will continue to incur substantial legal expenses incident hereto, plaintiffs are also entitled to recover the cost of this action. WHEREFORE, plaintiffs pray for judgment against defendant as set forth below. SECOND CAUSE OF ACTION | (BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING) 15. Plaintiffs hereby incorporate by reference all of the allegations set forth in paragraph 1 through 14 above, as though such allegations were repeated in their entirety and made a part hereof. 16. As described herein, plaintiffs heretofore contracted with defendant Proscapes, engaging said defendant, as licensed landscape and home improvement contractor, to provide the labor and materials necessary to design, provide and install certain exterior features and systems at the Home. Implied in said contractual relationship was a covenant and commitment by each party to the other that it would deal with the other fairly and in good faith. 17. Pursuant to the Agreement and the understanding between plaintiffs and defendant, defendant would act as plaintiffs’ general contractor, and would exercise its best discretion to fully 4 COMPLAINT E L G U I N D Y K O E G E L u r yew tne can rt M E Y E R « 5 S o m e N N H n W O Se WO W KH = N O N O N Y N Y N Y D Y N Y O R O D R m e e e i o N D N U N FS F R Y Y N K F CO D O H N D D B W n B P W D P B K F | ] ensure that the exterior of the Home was improved as agreed between the parties. Defendant would at all times comply with existing legal requirements as well as industry custom and practice. Within a relatively brief period of time, however, plaintiffs learned that the Property suffers from numerous construction and construction-related problems. By way of illustrative examples, and without limitation, plaintiffs have learned that the pool plaster has failed and that the artificial turf has separated from the ground and its own sections, resulting in significant and expensive damages and losses at the Property. 18. Plaintiffs, at all times, performed all covenants and conditions contractually imposed upon them. Defendant, however, breached the covenant of good faith and fair dealing in that said defendant lied to plaintiffs, sought to bill plaintiffs for materials not ordered and not used in the services provided at the Home on the Property, failed to comply with legal requirements imposed upon them, deceived plaintiffs, and otherwise ignored and breached repeated promises made to plaintiffs. 19. As a direct and proximate result of the breach of said implied covenant, plaintiffs have sustained and continue to sustain damages in an amount according to proof at the time of trial. Moreover, as said acts and actions of defendant were undertaken deliberately, intentionally, maliciously, and with the express intent to defraud plaintiffs and each of them, plaintiffs are entitled to recover punitive damages in such amount as the trier of fact deems to be appropriate. WHEREFORE, plaintiffs pray for judgment against defendant as set forth below. THIRD CAUSE OF ACTION (BREACH OF EXPRESS WARRANTY) 20. Plaintiffs hereby incorporate by reference all of the allegations set forth in paragraph | through 19 above, as though such allegations were repeated in their entirety and made a part hereof. 21. In addition to their contractual promises and assurances incident to the design and construction at the Property, defendant further promised plaintiffs that the Home would, following the completion of repairs and installations, be free from construction defects; amenable to use as a residence; able to withstand exposure to the weather and to routine use by its occupants; and > COMPLAINT E L G U I N D Y M E Y E R « K O E G E L u r 9 S o e s N N D o OH O B R W O P O = M O N Y O DY Y D B D O Y D D Q D D R O e i i i a e e “ a o N N O U N S F W Y N K DO DO O D O N D R H W BP W D B H KF CO otherwise effective and appropriate for its intended uses. 22. _ Within a relatively brief period of time following the completion of the improvements at the Property, plaintiffs have learned that the Property suffers from numerous construction and construction-related problems. By way of example, and without limitation, plaintiffs have learned that the artificial turf was not properly installed and is not properly placed on the Property; that the pool was not properly plastered, resulting in the failure of the plaster; and that concrete was not property poured or cured, resulting in inadequate finished surfaces; all of which has resulted in significant and expensive losses at the Property. Although defendant expressly warranted the Property to be free of such defects and although plaintiffs have notified defendant of the defects and problems located thereat, defendant has failed and refused and continue to fail and refuse to fix, remedy, modify or otherwise ameliorate the defects or the problems causing the defects. 23. | Asadirect and proximate result of the breach of said express warranty, plaintiffs have sustained and continue to sustain damages in an amount according to proof at the time of trial. i WHEREFORE, plaintiff prays for judgment against defendant as set forth below. FOURTH CAUSE OF ACTION (NEGLIGENCE) 24. Plaintiffs hereby incorporate by reference all of the allegations set forth in paragraph 1 through 23 above, as though such allegations were repeated in their entirety and made a part hereof. 25. As alleged above, plaintiffs contracted with defendant Proscapes to complete certain exterior landscape and construction-related home improvement services for plaintiffs. Defendant, in turn subcontracted with at least defendants DOE 1, DOE 2, DOE 3 and DOE 4 to provide labor, material and equipment to assist in the landscape improvements at the Home. In those various capacities, defendants and each of them (including the fictitiously named defendants) were responsible to exercise statutorily-mandated and commercially reasonable efforts to deliver safe, well-constructed facilities, to do so in accordance with applicable building codes 6 COMPLAINT WW W. EM EL AW YE RS .C OM E L G U I N D Y K O E G E L u r M E Y E R a s 9 o S o NI N DB O W O Lf 10 ll 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 and standards, and to do so in accordance with the plans and specifications impliedly incorporated into the Agreement. Notwithstanding the duties to act with due care, defendants and each of them negligently provided, and thereby failed to adequately provide, the required services necessary to complete the work at the Property. 26. Asaresult of the negligence of defendants as set forth herein, defendants provided plaintiffs with poorly and inadequately constructed landscape improvements. These problems will continue to cause plaintiffs extraordinary damages, losses and expenses. 27. It is readily apparent from the failure of such systems and improvements that the failures must have been caused by the negligence of the defendants or possibly some but less than all of the defendants. It is equally apparent that the causes of the failures were within the exclusive control of the defendants and each of them. The resulting injuries sustained by plaintiffs were of the type which do not occur absent negligence and which would not have occurred but for the negligence of one or more of the defendants. The resulting injuries were further caused by steps completely undertaken and instrumentalities fully controlled by the defendants or some of them. Certainly, the injuries were not caused by any action, inaction, conduct, step or contribution by or on behalf of plaintiffs. : 28. Asa direct and proximate result of defendants’ carelessness and negligence, plaintiffs have sustained and continue to sustain substantial losses and damages. Plaintiffs’ yard and exterior spaces remain in a state of disrepair. Plaintiffs thereby sustained damages in an amount according to proof at the time of trial, but which sum is estimated to exceed fifty thousand dollars ($50,000.00). WHEREFORE, plaintiffs pray for judgment against defendants, and each of them, jointly and severally, as follows: L For compensatory damages in an amount according to proof at the time of trial, although which sum is estimated to approximate or exceed seventy-five thousand dollars ($75,000.00); 2. For special damages in an amount according to proof at the time of trial; a For reasonable attorneys’ fees incurred herein; 7 COMPLAINT Wo w AM EL AW YE RS .C OM E L G U I N D Y K O E G E L u r M E Y E R : 9 - oO o O o K N D H O D S P WY W N N y N O N O N O N O N Y Y O R O R O w m e e a o A Y H D A F F WY N Y KF § B D G O F D N Q D B H H B P W D PB KF CO 4. For costs of suit incurred herein; and 5; For such other and further relief as the court may deem just and appropriate. Dated: Yily 4 AC/7 Respectfully submitted, ELGUINDY, ia - LLP By:
